Freeman v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Freeman v Minister for Home Affairs [2019] FCA 408

File number: WAD 340 of 2018
Judge: BANKS-SMITH J
Date of judgment: 26 March 2019
Catchwords: MIGRATION - mandatory visa cancellation - where cancellation decision made pursuant to s 501(3A) of the Migration Act 1958 (Cth) - refugee visa - application for review of decision not to revoke the cancellation of a visa - where applicant convicted of sexually based offences involving a child - where applicant imprisoned for breaching suspended sentence orders - where applicant made representations about revocation to the Minister - whether Minister failed to consider circumstances of breach of suspended sentence orders - where Minister's decision based on seriousness of sexual offences - whether Minister failed to consider outcome that children may be required to visit Liberia to maintain relationship - whether such claim clearly articulated - whether Minister failed to consider representations as to harm and hardship including fears of death - where Minister considered Australia's non‑refoulement obligations and the relevance of Direction No 75 - nature of the content of the Minister's obligations to consider representations and statements - no jurisdictional error
Legislation: Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456

DOB18 v Minister for Home Affairs [2018] FCA 1523

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Ibrahim v Minister for Home Affairs [2018] FCA 1592

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81

Navoto v Minister for Home Affairs [2019] FCA 295

NBZM v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1

Picard v Minister for Immigration and Border Protection [2015] FCA 1430

Raibevu v Minister for Home Affairs [2018] FCA 2052

Sowa v Minister for Home Affairs [2018] FCA 1999

Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

Date of hearing: 18 December 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category:
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Details
Case
[2019] FCA 408
Decision Date

CaseChat Overview and Summary

Freeman v Minister for Home Affairs involved the applicant, Freeman, challenging the Minister for Home Affairs' decision to not revoke the mandatory cancellation of his visa. The dispute arose under the Migration Act 1958 (Cth) and related to Freeman's character and the potential impact of his removal to Liberia. Freeman, a refugee visa holder, had been convicted of sexually based offences involving a child and was imprisoned for breaching suspended sentence orders. He made representations to the Minister about the potential harm and hardship if his visa was not revoked.

The legal issues before the court were whether the Minister failed to consider Freeman's representations regarding the breach of his suspended sentence orders, the outcome that children may be required to visit Liberia to maintain familial relationships, and the potential harm and hardship Freeman might face in Liberia. The court also needed to determine the nature of the Minister's obligations to consider Freeman's representations and statements.

The court found that the Minister had adequately considered the relevant factors, including Freeman's representations, the seriousness of his offences, and Australia's non-refoulement obligations. The Minister's decision was based on the gravity of Freeman's crimes and the lack of compelling reasons to revoke the visa cancellation. The court held that the Minister did not make a jurisdictional error in his decision-making process.

The final orders of the court were to dismiss Freeman's application with costs. This decision affirmed the Minister's authority to uphold the mandatory visa cancellation in light of the serious nature of Freeman's crimes and the lack of sufficient mitigating circumstances to warrant a revocation of that decision.

Orders

Orders of the court

1. The application be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a letter to the Department dated 23 December 2017 the applicant made further representations. He said, relevantly:As I'm the father of three Australian kids, … as well as my 2 [stepchildren] …, It is my fervent hope and prayer to join my beautiful young family …, and to see my [children and stepchildren] grow up, be part of their upbringing and contribute meaningfully to their wellbeing in Australia. Like every other kid, my kids need their father around to support, protect and provide the fatherly love and care that are essential to every child.With no Immediate family members back home in Liberia, no home, lack of proper security, basis social services and opportunities, going back to Liberia to stay will be like committing suicide. All my Immediate family members reside in Australia including my Biological mother and step father, my brothers and sister, my nieces, my nephews, my partner, 2 [stepchildren] and my 3 [children].…I'm so afraid for my life because the same rebels who attacked our home and killed my father are still there and some still remain occupying key positions in the security forces in Liberia.Liberia is deteriorating and it's the 4th poorest country in Africa and even though there is a little bit of law and order the security situation in my country is unsafe because of limited number of police and army personells who are logistically disadvantaged in performing their duties and criminal activities such as armed robbery, Theft and secret killings have increased significantly due to high youth unemployment and ex combatants who are using their rebel skills to make quick money.The Minister's decision The Minister's decision commenced at [7] with a statement that he had considered the representations made by the applicant and the documents he submitted in support of his representations. The Minister noted that as at 29 November 2016, when the applicant's visa was cancelled, he was serving a sentence of imprisonment. The Minister referred to the National Police Certificate that indicated that on 19 December 2014 the applicant was convicted of two counts of sexually penetrating a child over 13 and under 16 years, and referred to s 501(6)(e) (sexually based offences involving a child). The Minister then stated that the information in the National Police Certificate was not challenged and accordingly he was not satisfied that the applicant passed the character test, with the result that s 501CA(4)(b)(i) was not met, and that it was therefore necessary to consider whether he was satisfied that there is another reason why the original decision should be revoked. The Minister then provided a summary of the representations:12.In the representations/documents submitted by or on his behalf, Mr FREEMAN has articulated reasons why the original decision should be revoked, which include:-He first arrived in Australia in August 2009 at the age of 17 and has resided here for over eight years.-He has two infant twin [children] born from his current relationship, as well as two [stepchildren] from that relationship and a five year old [child] from a previous relationship. He wishes to remain in Australia to provide essential parental support and raise his family. These children need his presence as they grow up.-His other family members in Australia include his mother, stepfather, two brothers, sister, step brother, four nieces and one nephew.-He has expressed his remorse and regret for his actions, as well as undertaking steps to reform his character and improve his personality. Family members consider him rehabilitated.-Whilst incarcerated, he has participated in rehabilitation programs to overcome his substance abuse as well as undertaking training courses.-He has no immediate family back in Liberia and no support in the form of accommodation and employment there; he is also concerned that he will have to leave his family behind.-He fears returning to Liberia because of the presence of the same rebel militia who attacked his family's home, beat them unmercifully and killed his father; some of them may also occupy key positions in the security forces in Liberia who could harm or even kill him.

Ratio Decidendi

Legal Principle Established

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